Managed Care - February 2009 - (Page 16) carrier settled a UCR case with patients for approximately $297 million. At least two other cases are seeking class action status. One is Weintraub et al v. Ingenix Inc., a case filed in 2008 on behalf of doctors and patients seeking to become certified as a class. Jeffrey Weintraub, an Aetna subscriber, contends that he was defrauded by a conspiracy in which health plans lowballed out-of-network rates using Ingenix data. A second case, Cooper v. Aetna, was filed in 2007 in New Jersey. Aetna has already received a $9.5 million fine from the New Jersey Department of Banking and Insurance for setting UCR at arbitrarily low levels. And last February, New York Attorney General Andrew Cuomo announced his intention to sue UnitedHealth Group and four subsidiaries, including Ingenix, over UCR defects in its database. Cuomo said the case could affect 70 percent of Americans with private health insurance. Subpoenas were also issued to Humana, Aetna, Health Net, Empire BlueCross BlueShield, Cigna, and others. Investigations by regulators in other states may follow. According to Cuomo’s office, the database reportedly understates true market rates of medical care by up to 28 percent. Tyler Mason, speaking for UnitedHealth, defended the Ingenix data in February 2008, saying it was “rigorously developed, geographically specific, comprehensive, and organized using a transparent methodology that is very common in the health care industry.” Without admitting guilt, last month United, in a settlement with Cuomo, reportedly agreed to fund the creation by an unnamed university of a $50 million independent database of physician charges. It would replace the database that is administered by Ingenix. Other carriers may be asked to contribute to the creation of the database, reported the New York Times. United also announced it would pay $350 million to settle the American Medical Association-Ingenix class action suit. The Ingenix lawsuits have attracted so much attention that the highlight of an upcoming March 31 Las Vegas MCO conference, Maximizing Network Success & Outreach, is a panel discussion titled “Exploring the Ingenix Class Action Lawsuit: Charging Below the Going Rate, Extracting Outliers, & Using High End Data to Hold Down the Dollar.” Panel guests include representatives from Highmark Blue Shield and Connecticare. Plaintiffs’ lawyers suggest an argument in defending these claims. “The best defense the carriers have would be taking reasonable steps to validate what the area prices are,” says Mark Gallant, JD, a Philadelphia lawyer who represents plaintiffs. “They could demonstrate that they relied on good faith on the understanding that the data were collected objectively and that so far as the plan was concerned, it believed the product was a viable product based on good statistical research.” Tiering and rescission There are three other hot areas of provider litigation against plans. One is tiering, when insurers rank physicians and offer lower copayments to patients who see top-rated doctors. The Massachusetts Medical Society filed a lawsuit in May 2008 against Tufts Health Plan, UniCare Life, and Insurance Co. and Group Insurance Commission, the state agency that handles health care for state employees, stating that the rankings, based on claims data, defame doctors who score poorly but actually provide high-quality, low-cost care. In Washington State Medical Association v. Regence Blue Shield, a case settled in 2007, Regence was sued for unfair tiering. Under the settlement, the association must be permitted to suggest more objective criteria for measuring physician performance, and the company must allow physicians to appeal their scores. Complaints have been filed against Cigna and others. “Ranking will not be abandoned, but there will be more process to how it’s done,” says Joel Michaels, JD, who represents health plans. Another area of provider litigation is rescission, the term for when insurers cancel individual patient policies after receipt of large bills. Plans allege that patients supply willfully misleading or fraudulent statements on applications to obtain coverage; patients allege that plans do not do “due diligence” when applications are received and that they cannot remember every illness they ever had. In one case, Blue Cross of California (WellPoint), one of the state’s two largest carriers, settled a 2007 class action lawsuit for rescinding policies when applicants had made honest mistakes or inadvertent errors. 16 MANAGED CARE / FEBRUARY 2009
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